Makram Constructions Pty Limited v North Sydney Council [2002] NSWLEC 4

Makram Constructions Pty Limited v North Sydney Council [2002] NSWLEC 4

Because the present proceedings were a s 96 application to modify a development consent granted by the Court, the Court was exercising original jurisdiction as the deemed consent authority and there was no person or body whose decision was the subject of an appeal. Section 39(2) of the Land and Environment Court Act 1979 therefore had no application and could not vest in the Court the Council's delegated Roads and Traffic Authority power to create a works zone.

Jurisdiction
Australia
Judgment Date
18 January 2002
Procedural Posture
Application Under Environmental Planning and Assessment Act 1979, S 96 to Modify a Development Consent Granted by the Land and Environment Court / Determination of Preliminary Questions of Law Before Hearing on the Merits
Outcome
Preliminary questions of law answered; the Court held that the Council's delegated power to create a works zone was not available to the Court under s 39(2) in the present modification application.
Legal Topics
['modification of Development Consent' 'land and Environment Court Act 1979, S 39(2)' 'delegated Roads and Traffic Authority Powers' 'works Zone' 'regional Traffic Committee Appeal']
['environmental and Planning Law' 'local Government' 'roads and Traffic Law' 'court Jurisdiction and Procedure'] ['modification of Development Consent' 'land and Environment Court Act 1979, S 39(2)' 'delegated Roads and Traffic Authority Powers' 'works Zone' 'regional Traffic Committee Appeal']

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Procedural Posture

Application Under Environmental Planning and Assessment Act 1979, S 96 to Modify a Development Consent Granted by the Land and Environment Court / Determination of Preliminary Questions of Law Before Hearing on the Merits

Legal Issues

  1. 1 ['Does the power to create a work zone arise under the Road Transport (Safety and Traffic Management) Act 1999?' 'In light of the nature of the present proceedings, is the power vested in the Council available to the Court pursuant to s 39(2) of the Land and Environment Court Act?' "Can the Court exercise the power of the Roads and Traffic Authority delegated to the Council by instrument of delegation dated 26 October 2001 to create a works zone when the Council's exercise of the power is subject to an appeal to a Regional Traffic Committee?" 'If the Court can exercise that delegated power, is the Land and Environment Court Act constrained by the terms of the delegation?' 'If the Court can exercise that delegated power, does s 39(5) of the Land and Environment Court Act operate to extinguish the right of appeal conferred by the delegation?']

Ratio Decidendi

Because the present proceedings were a s 96 application to modify a development consent granted by the Court, the Court was exercising original jurisdiction as the deemed consent authority and there was no person or body whose decision was the subject of an appeal. Section 39(2) of the Land and Environment Court Act 1979 therefore had no application and could not vest in the Court the Council's delegated Roads and Traffic Authority power to create a works zone.

Court Disposition

Preliminary questions of law answered; the Court held that the Council's delegated power to create a works zone was not available to the Court under s 39(2) in the present modification application.

Orders

  • ['Question 1 answered: Yes.' 'Question 2 answered: No.' 'Question 3 answered: In view of the answer to Question 2 this question does not arise; however, but for the answer to Question 2, the answer would be yes, but subject to all of the limitations imposed upon the Council by the delegation.' 'Question 4 answered:...